Rutherford And Husband To Testify In Custody Battle

“Gossip Girl” star Kelly Rutherford and her estranged husband have been ordered to court in their custody battle over their 2-year-old son.

The actress and her soon-to-be ex, Daniel Giersch, attended a hearing in Santa Monica, Calif., on Wednesday, and the couple will testify against each other on Thursday before a judge decides whether Rutherford can take her son, Hermes, to New York, where she shoots “Gossip Girl,” until March.

Giersch has asked for the judge to halt Rutherford’s plans, claiming she has anger issues and he is his son’s primary care giver.

Giersch’s attorney, Fahi Takesh-Hallin, argued in court that it is in the child’s best interest for the boy to stay with his father.

In legal papers filed on Wednesday, Giersch claims he tried to potty train his son, but Rutherford took the mini-toilet seat away, hid it and did not “encourage him to use the toilet.”

In documents obtained by TMZ.com, Giersch adds, “I have witnessed that she does not always keep his bottom clean.”